Pickwick Stages v. Price

CONREY, P. J.

Respondents moves that the court strike from the files the transcript on appeal herein on the ground that it is not the transcript on appeal provided for by the Code of Civil Procedure “and is not a transcript corrected as provided by the rules” of this court. The argument for this motion proceeds upon the circumstance that after the clerk’s transcript and the reporter’s transcript had been forwarded by the clerk of the superior court to the clerk of the supreme court, and before they were filed in the office of the clerk of the supreme court, where the appeal was then pending, the clerk of the supreme court permitted the attorneys for appellant to withdraw the transcripts for the purpose of having them further certified before filing. This was done two successive times before the transcripts were filed. It is not claimed that the transcripts were modified other than by the addition of further certificates. Sufficient grounds for a motion to strike the transcripts from the files do not appear.

Alternative to the motion above noted, respondent further moves for an order striking from the transcript certain described portions thereof. This motion is made upon the ground that such portions of the record are not provided for or authorized by law, and are in violation of sections 953a and 953c of the Code of Civil Procedure and of the rules of the supreme court. From the context of the statement as contained in the notice of motion, we assume that by “the transcript” respondent refers to the “reporter’s transcript.” ■

The judgment described in the notice of appeal is a judgment based upon findings of fact pertinent to the plaintiff’s alleged cause of action and upon plaintiff’s default for not answering defendant’s cross-complaint. Affirmative relief

[718]

was granted to defendant upon his cross-complaint. From the minutes of the court, it appears that after the default of plaintiff for failure to appear after service upon him of the cross-complaint had been entered, the plaintiff on June 23, 1919, moved that said default be set aside and that he be permitted to plead to said cross-complaint; and that on February 16, 1920, said motion was denied. The reporter’s transcript consists of an original transcript purporting to contain the' proceedings at the trial, and to which is annexed a supplement the contents of which are noted on the .cover thereof as being “All papers, records and files in the above-entitled action not included in the judgment-roll therein.” This reporter’s transcript and supplement are indorsed “Filed by the Clerk of the Superior Court October 25, 1920.” The supplement contains pages numbered 1 to 76. On March 4, 1921, the judge certified the original transcript in due form as a true transcript of the proceedings at the trial and further certified that the contents of the first twenty-four pages of the supplement were copies of certain writings offered in evidence at the trial. The pages thus specified are unrelated to the order refusing to set aside default. The proceedings which appellant seeks to have recognized as relating to the motion to set aside default are those contained on and following page 26 of the supplement.